Question
The routine practice of “ghost surgery” is well documented in medicine. Ghost surgery refers to any medical procedure in which the contracting physician was not the actual physician who performed the procedure. In many instances the patient is completely unaware simply because the patient is unconscious at the time. Ghost surgery is not, strictly speaking, limited to surgical procedures. The same phenomenon occurs in a variety of medical settings from radiology to routine lab work. In some instances, ghost surgery is a necessary component of the medical system, for example with the obvious need to train medical students to become the future surgeons of the world.
Ghost Surgery
Ghost surgery has become a common phenomenon in the medical world. Ghost surgery occurs when a medical personnel other than the contracting physician conducts an invasive medical procedure on the patient and often without the patient’s knowledge. There are various legal implications that may arise from this arrangement. Serious legal issues may emerge especially where harm to the patient occurs. Ethical issues also emerge in such arrangements, mainly concerning the right of the patient to receive important information concerning the treatment procedure. This paper is an analysis of case scenarios focusing on the issue of ghost surgery.
Tunkl v. Regents of the University of California
In Tunkl v. Regents of the University of California the court elucidated on the circumstances under which a contract may be regard as of public interest (Furrow et al., 2013). The facts of the case involved the plaintiff, Tunkl, who appealed the decision by a lower court citing denial of payment for damages resulting from a malpractice (Tobriner, 2009). Tunkl had instituted charges against Regents of the University of California for personal injuries encountered. The hospital operated as a non-profit organization. Its major role was to conduct research programs. The hospital had a number of conditions for admission, one of the conditions stating that patients would not hold the hospital liable for any wrongful acts committed by the caregivers and if the hospital applied due care in selecting the caregivers.
The appeal court held that the exculpatory clause in this case was invalid since the issue at hand was of public interest (Hall, 2003). Despite the Regents of the University of California absolving itself from any liability, the court held that such a provision would not hold as it exhibited various characteristics that would make an exculpatory provision invalid (Tobriner, 2009). One of the characteristics is that the health care provider is a public institution and thus subject to public regulation. The other factor concerns the necessity of the services provided. Lastly, the fact that the hospital presented itself as willing to provide critical services to the public is an important factor.
Resolving a good balance between the rights of the patients and the practical needs of the medical community is critical for the improved welfare of all parties. Since this is a matter of public interest, and in particular concerns the health of individuals, it is necessary that health care organizations apply due care in their treatment procedures. As such, the health care organization must take liability for any wrongdoing or negligence on the part of its employees. The hospital holds a duty of care for all patients including the nonpaying patients (Tobriner, 2009). Nonetheless, no health care organization should take liability for injuries resulting from unavoidable circumstances or in circumstances where due care was exercised, for instance, in a situation where a qualified caregiver was present.
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Shorter v. Drury
In Shorter v. Drury, the plaintiff appealed for the wrongful death of his wife following a surgical procedure to remove a fetus that had died in her uterus (“Casenotes,” 2009). Shorter was a Jehovah Witness faithful. Their religion prohibited them from receiving blood transfusions even during medical emergencies. There were three possible medical procedures for removing the fetus. Among the three procedures is curette, which involves the use of a metal instrument with a sharp edge on one side. The use of curette significantly increases the chances of excessive bleeding since it carries the risk of perforating the uterus. The other two procedures have reduced risk of bleeding. Dr. Drury opted for dilation and curettage in the removal of the fetus (Justia, 1985). Prior to surgery, the patient signed a document releasing the caregivers of any liability should anything happen due to lack of a blood transfusion. During surgery, the patient bled to death.
Shorter was constrained by her faith against having a blood transfusion. Shorter have a right to refuse blood transfusion as her faith advocates. Another important thing to consider is that Shorter had a right to information about the various surgical alternatives and the risks each carried (Furrow et al., 2013). Despite her rights to information, Dr. Drury failed to provide Shorter with less risky alternatives considering she could not have a blood transfusion (Justia, 1985). On the other hand, Dr. Drury opted for the routine procedure, which is dilation and curettage.
It is important to maintain a balance between the rights of the patients and the practical needs of the medical community in this case. The patient had a right to refuse blood transfusion basing on her faith. In addition, the caregivers should not be held liable for refusal of the patient to have a particular medical procedure. However, Dr. Drury was liable for failure to provide information to the patient. Dr. Drury failed to exercise due care by choosing an alternative surgical procedure that carries less risk of causing bleeding. The fact that the patient had a right to refuse blood transfusion did not exclude the physician from assuming liability, although partial liability.
References
Casenotes. (2009). Health Law, Keyed to Furrow, Greaney, Johnson, Jost & Schwartz. Retrieved from http://www.worldcat.org/title/health-law-keyed-to-furrow-greaney-johnson-jost- schwartz/oclc/430057170
Furrow, B. R., Greaney, T., Johnson, S., Jost, T., & Schwartz, R. (2013). Health law: Cases, materials and problems. St. Paul, MN: West.
Hall, M. A. (2003). Health care law. Retrieved from http://www.worldcat.org/title/health-care- law/oclc/61363769
Justia. (1985). Shorter v. Drury. Washington Case Law. Retrieved from https://law.justia.com/cases/washington/supreme-court/1985/50601-9-1.html
Tobriner, J. (2009). Tunkl v. Regents of University of California , 60 Cal.2d 92. Stanford Law School. Retrieved from https://scocal.stanford.edu/opinion/tunkl-v-regents-university- california-27188-21
